Dads need lovin' too. So says a federal court judge, who has allowed a father to proceed on his FMLA retaliation claim after the employee alleged that his employer's "macho man" culture was a culprit in his ouster.

As I detailed in a previous blog post, Ariel Ayanna was an attorney at a Boston-based law firm. By all accounts, he had two years of solid performance evaluations and a $30,000 bonus in the year prior to his termination. Then, he took four weeks of leave to care for his wife after the birth of their child and to bond with his newborn. (The facts suggest he needed to care for his wife, who suffered from a variety of serious health conditions.)

When Ayanna returned to work, it wasn't the same. He claims the firm assigned him less work and ridiculed his care-taking ways. At the time of his termination, the firm even shared that his "personal" issues constituted one of reasons for his ouster. Ouch.

In refusing to dismiss Ayanna's FMLA retaliation claim, the court clung to the statement above, suggesting that a "reasonable jury could find that the comment was directed at Ayanna's recent need to take FMLA leave." Also noted as an inconsistency in the employer's story: its claim that Ayanna's low client billable hours also supported his termination. The problem? There was evidence that others missed the hours mark, too, and did not suffer the same fate as Ayanna.

In Ayanna's complaint, he claimed that the firm maintained a "macho culture" where time off to attend to fatherhood and being an "engaged" dad were seen as weak and undesirable. However, in a nod to the employer, the court bounced this claim, finding that it was too vague to support a sex discrimination claim, which the court dismissed. Ayanna v. Dechert LLC (pdf)

However, the FMLA retaliation claim now remains for a jury to consider. The evidence precluding dismissal falls into two usual taboo categories that often trip up an employer when it comes to retaliation claims: insensitive comments that could be viewed as discriminatory and an inconsistent application of discipline to those outside the protected class.

Insights for Employers

As always, there are lessons to be learned by employers. The court's decision reminds us of at least two best practices:

As I have stated before, loose lips sinks ships. If one of the reasons for his termination was indeed his "personal" issues -- that is, taking care of his wife with a serious health condition and bonding with his child -- it created a tremendous risk of liability for the employer. Note to managers, supervisors, owners, HR professionals and anyone else in a positive to effect a personnel decision: Stop saying stupid stuff! I've detailed all too often lately stories about employers (here and here) who now face a jury on their FMLA claims because they allegedly made foolish remarks in conjunction with a termination decision. Don't do it, and train your managers and supervisors to do the same. This case serves as yet another example of how easily a court will send a case to a jury as a result of one indiscreet comment.

Apply disciplinary criteria consistently. If you decide that a performance deficiency is particularly troublesome and requires termination, look around the room before lowering the boom. Are other employees (especially those who have not recently returned from FMLA leave) guilty of the same problem? If they were not subject to similar discipline or their situation cannot be distinguished in some meaningful way, employers again create significant risk of liability. Courts don't like it, and juries are even less forgiving.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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